David and Goliath Battles

Over the past few weeks, the close of the 2009 Supreme Court term and the confirmation hearings for nominee Elena Kagan have together prompted much analysis of the ideology and direction of the Roberts court, particularly with respect to the impact of its decisions on “ordinary Americans.” While the role of the Court in interpreting and validating the nation’s laws has always affected the individuals bound by them, a recent body of decisions has highlighted with unusual clarity the competing interests of the mighty and the powerless where such determinations are concerned.

The Kagan hearings furnished legislators with an occasion not only to review the Court’s jurisprudence from the past few terms but also to discern common themes and priorities likely to reemerge in the years to come. One such leitmotif has been power dynamics in the workplace and other institutional settings. To underscore the Court’s anti-worker orientation, policymakers have pointed to such rulings asRent-A-Center v. Jackson, which recently upheld the power of arbitration agreements to preclude judicial review of their validity, effectively obligating employees to waive their right to a trial in the event of future disputes.

The effects of unequal bargaining power, meanwhile, are hardly limited to the workplace. Anyone who has ever applied for a credit card, registered for cell phone service, or acquired health insurance has undoubtedly committed to mandatory arbitration of future disputes; after all, to refuse to submit to such conditions would require forgoing basic needs. For the majority of Supreme Court justices, however, the concept of duress is limited to situations in which consumers literally sign contracts at gunpoint.

While low-income individuals are unlikely to incur obligations under the barrel of a gun, they are entirely apt to commit to unfavorable, or even oppressive, terms in the knowledge that failing to do so could cost them their jobs or homes. Much like Antonio Jackson, whose arbitration agreement was the subject of dispute in Rent-A-Center, many vulnerable tenants commit to dubious lease terms for fear of otherwise lacking affordable housing. As with prospective employees, these tenants cannot engage in meaningful negotiation without imperiling their access to basic necessities.

Among the most likely to be subject to substandard lease terms are domestic violence victims, for whom access to safe housing can mean the difference between life and death. This urgency, combined with the potential for domestic violence to yield an erratic rental history, makes such tenants particularly vulnerable to exploitation by opportunistic landlords.

Like employers who condition job offers on consent to mandatory arbitration, housing providers are often in a position to exact such demands as added rent or even sexual services from tenants desperately in need of housing. While the Violence Against Women Act prohibits public housing agencies and subsidized landlords from holding victims to different standards from those applied to other tenants, private landlords are subject to no such strictures in the absence of state laws. Existing protections, meanwhile, often go unpublicized and unenforced, further disempowering tenants in disputes with housing providers.

As these David and Goliath battles continue to wind their way through the judicial system, the Supreme Court would do well to recall a nearly century-old warning from former Justice Hughes as to the consequences of exploiting vulnerable workers. To sanction their oppression, he cautioned, “is not only detrimental to their health and well being, but casts a direct burden for their support upon the community,” creating “what is in effect a subsidy for unconscionable employers.” Let’s hope the Court quashes this subsidy in the months to come.